A brief statement is attached setting out the Commission's reasons for the determination.

1. Shlimon Youkhana Shlimon (the applicant) commenced employment with Steric Pty Ltd (the respondent) in about November 1993 as a process worker, packer, forklift driver and general labourer.
2. In about 2006 he brought a claim for lump sum compensation for injuries to his lumbar spine and left shoulder due to the nature and conditions of his employment with the respondent and was ultimately paid $12,500 for 10% whole person impairment with respect to the period of employment up to 3 November 2004.
3. The applicant continued to work for the respondent up until 14 February 2021 and his employment was terminated in the months that followed.
4. On 17 October 2024 the applicant commenced proceedings in the Personal Injury Commission (Commission seeking lump sum compensation with respect to injury to his left upper extremity, right lower extremity, lumbar spine, respiratory system and urinary and reproductive system relying on assessments equating to 45% whole person impairment. The application recorded a date of injury of 1 January 2002 but said to cover the period 1 January 2002 to 23 July 2020. The injury description sets out that the injuries result from the nature and conditions of the applicant's employment over that period.
5. There being no liability dispute raised by the respondent, the matter was referred to two Medical Assessors; Lead Assessor John Carter to assess the urinary and reproductive systems and Non Lead Assessor Mary Obele to assess the remaining body systems.
6. The referral recorded a date of injury, as reflected in the application, of 1 January 2002 and noted a previous settlement in 2006 of 10% whole person impairment for the back and left arm. No issue was taken with the terms of the referral by either party prior to the assessments.
7. Medical Assessment Certificates were issued by both Medical Assessors. The Lead Assessor providing a combined assessment of 46% whole person impairment with a date of injury of 1 January 2002.
8. The parties subsequently raised with the Commission a dispute with respect to the date of injury which ought to be used when assessing the monetary value of lump sum compensation to be awarded to the applicant.
9. This is an issue that ought to have been resolved prior to the referral to the matter to the Medical Assessors but nevertheless now requires determination by the Commission.
10. The issue is of particular importance to the parties as there is a significant variance to the monetary value of compensation which would be payable with respect to 46% whole person impairment depending on the date of injury.

1. There is no dispute that the applicant is suffering from injuries, resulting from his employment with the respondent to the urinary and reproductive system, the respiratory system, the lumbar spine, the right upper extremity and the left upper extremity.
2. The parties agree that the following issue remains in dispute:

(a) date of injury to be applied in assessing the applicant's monetary entitlement to lump sum compensation in accordance with s 66 of the Workers Compensation Act 1987 (1987 Act).

1. It became evident from the manner in which submissions were advanced before me that there was also a dispute with respect to whether the applicant in fact sustained a further deemed injury on 22 July 2020.
2. It was also agreed between the parties that there was an apparent error, identified during the conciliation, with the Lead Medical Assessment Certificate of Medical Assessor Cater. Medical Assessor Obele assessed impairment of the left and right upper extremities. Medical Assessor Carter, as the lead assessor was to include the assessment of Medical Assessor Obele in his Lead Medical Assessment Certificate. In doing so he has inverted the values assessed for the left and right upper extremities. While this does not change the overall assessment of permanent impairment, that parties sought, and I agreed, that it is appropriate the certificates be referred back to the Medical Assessors for reconsideration and correction.

1. This matter was listed before me for conciliation conference and arbitration hearing on 14 May 2024. Mr Hickey of counsel appeared for the applicant instructed by Mr Romeo. The applicant was also in attendance. The respondent was represented by Mr Gaitanis of counsel instructed by Mr Mead. A representative of the respondent's insurer was also attendance.
2. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attachments;

(b) Reply and attachments, and

(c) Lead and non-lead Medical Assessment Certificates.

What date of injury is to be used in assessing the monetary value of the applicant's entitlement to lump sum compensation?

1. The applicant submitted that the matter progressed to assessment by two Medical Assessors on the basis of injury of gradual process to the lumbar spine, right and left upper extremities and a consequential condition to the urinary and reproductive system with the date of injury recorded as 1 January 2002 being first day of period claimed in the application with the application pleading injury in the period between 1 January 2002 until 23 July 2020.
2. The applicant submitted that he was previously paid lump sum compensation pursuant to s 66 of the 1987 Act in accordance with consent orders dated 27 July 2006 which provided for payment of $12,500 with respect to "10% whole person impairment attributable to the nature and conditions of the Applicant's employment with the Respondent from 1999 to 3 November 2004".
3. The applicant submitted that he was entitled to bring the current proceedings (and there is no dispute on this issue) as his prior proceedings were brought prior to 18 July 2012 as such he is entitled to one further claim with respect to those injuries.
4. The applicant referred to his statement evidence setting out the further development of his various injuries and symptoms.
5. The applicant referred to the decision of Griffith AJA Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad) which referred to decisions in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley) and Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (Ozcan) and submitted that these decisions deal with the issue of causation.
6. The applicant submitted that Ozcan dealt with aggregation of s 66 impairments and the Court of Appeal saw fit to allow aggregation of impairments on the principles of causation on the basis that the second and third injuries augmented the impairment and in doing so applied the second test on Oakley.
7. The applicant submitted that there is scope to adopt and determine a later deemed date of injury based on incapacity later than the 2004 date of injury which was the date relevant to the earlier claim for which the applicant has already been compensated.
8. The applicant submitted that his evidence of incapacity on 22 July 2020, as set out in his statement, provides a basis for finding a further later deemed date of injury.
9. The applicant submitted that the date of injury for calculation of the entitlement to lump sum compensation should be 22 July 2020. He submitted that he continued to perform significant work from 2004 through to 22 July 2020 and has previously brought a claim for the earlier period referred to in the 2006 certificate of determination. The applicant submitted that this was only for the back and left arm and he now claims with respect to the right arm as well (with the additional consequential condition).
10. The applicant referred to s 4(b) and the deeming provisions in s 15(1) of the 1987 Act which operate to identify the responsible employer.
11. The applicant submitted this lends support to compensating at the culmination of the events of injury, that being when the relevant employer is identified. The applicant accepts that the s 15 provision was introduced to reduce litigation and identify one respondent and prevent multiple claims against multiple employers. However the applicant submitted there is no escaping in a case such as the present one that there has been a worsening of the impairment and injuries and as a matter of causation that is all consistent with the application of Ozcan and Oakley as all stemming from the first injury.
12. What the applicant submits what is different is that the right shoulder injury comes on after 2004.
13. The applicant submitted that the right shoulder developed by way of gradual progress and the other injuries also progress. It would deny the applicant proper compensation to adopt the date of injury for the purpose of assessing entitlement as 2004 where the injuries have developed or progressed after that time.
14. The applicant submitted that the entitlement to s 66 impairment compensation should be determined on the later date of incapacity noting his worsening from the earlier date up until that date and in that sense it is necessary to distinguish the proper compensation to be awarded as distinct from the issues of causation alone, although the applicant submitted he accepted the consequential condition and the left shoulder and back all do stem from the first injury identified in the Certificate of Determination (COD) of 2006.
15. The applicant submitted I would find deemed date consistent with Haddad 22 July 2020 and the applicant would be entitled to $170,200 with uplift of 5% for the lower back to total $172,605 less the $12,500 already compensated for a total of $160,105.
16. I asked Mr Hickey how do I deal with s 322(2) with respect to assessing impairments arising out of the same injury together. The applicant submitted that all injuries culminate on the deemed date of injury and if I accept the applicant's submission all injuries culminate on 22 July 2020 and the consequential injury flow from those injuries.

1. The respondent submits that the applicable date of injury should be 3 November 2004. The injuries are a disease process arising from nature and conditions of employment over an extended period of time. Incapacity for work on 3 November 2004 and a previous amount for lump sum compensation paid.
2. The respondent submitted that I must follow what was said in Ozcan and Haddad.
3. The respondent submitted that with respect to s 15(1) injury shall be deemed to have happened at the time of incapacity. This is consistent with Haddad and Ozcan. The Court of Appeal held that if a disease injury has resulted in incapacity that is the deemed date of injury.
4. The respondent referred to the decision of Haddad and in particular at [69], [71] and [80].
5. The respondent submitted that on the applicant's evidence he has never, since 2004, returned to doing overtime work and that this represents an ongoing incapacity from that time onwards.
6. The respondent referred to Gutierrez v State of New South Wales South Western Sydney Local Health District [2024] NSWPIC 656.

1. Firstly, I am satisfied, having regard to the medical evidence and the statement evidence of the applicant, that he suffered further injury to his lumbar spine and left shoulder as well as injury to his right shoulder due to the nature and conditions of his employment up to 22 July 2020 and additionally he is suffering consequential conditions to his respiratory and urinary and reproductive systems. These various injuries were not disputed by the respondent.
2. Section 15 of the 1987 Act does not operate such that the applicant having had an earlier injury with a deemed date of 3 November 2004, is not entitled to a finding of further injury where he has continued to work in employment with the same employer giving rise to a further injury. Where the applicant has continued to work and then there is further injury in that work resulting in incapacity, s 15 operates to deem a further date of injury. This is consistent with the approach taken by the Court of Appeal in Haddad. 22 July 2020 being the date of further incapacity. I reject the respondent's submission that there is only one date of injury in 2004 for these reasons.
3. Having found further injury with a deemed date of 22 July 2020 consideration now needs to be had to the date for the referral for the claim for lump sum compensation from which calculation of the monetary value of compensation flows.
4. The applicant has clearly advanced the matter on the basis that the impairments from the 2004 injury and the 2020 injury are related and can be aggregated. The is evident from:

(a) the submission that he was only entitled to bring a further claim for lump sum compensation because the earlier claim was brought prior to 18 July 2012 (such that s 66(1A) of the 1987 Act does not apply to the further claim), and

(b) the concession that the earlier compensation paid in 2006 would need to be deducted from any further entitlement he may now have.

1. I considered the issue in similar circumstances in the matter Gutierrez which the respondent referred to in these proceedings at length. I adopt what I said in Gutierrez at [102]-[105] with respect to the operation of s 322(2) and s 322(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
2. Section 322(2) of the 1998 Act provides that "Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker".
3. Section 322(3) of the 1998 Act provides that "Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker".
4. In applying s 322(2) and (3) I consider I am required to follow what was said by Macfarlan JA (with Simpson AJA and McCallum JA agreeing) in Ozcan, where he noted that the relevant question "was whether the later [injury] resulted from those on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the [first injury] because all the injuries arose out of the same incident."[1] MacFarlan JA further concluded in Ozcan "the impairments are however connected because the first incident injuries materially contributed to them". They therefore "arose out of" and "resulted from" that incident.
5. The injuries to the applicant's left shoulder and back continued to deteriorate following the 2004 deemed injury including with the development of the conditions to the respiratory and urinary and reproductive system. The applicant also developed complaints in his right shoulder as a result of the nature and conditions of his employment.
6. I am satisfied, applying the principles in Ozcan, that the earlier injury in 2004 materially contributed to the later conditions in the lumbar spine (and consequential urinary and reproductive condition) and left shoulder and that the later conditions therefore arose out of and resulted from the 2004 injury.
7. This is entirely consistent with the submission advanced by the applicant that Ozcan permits the aggravation of impairments on the principles of causation where the later injuries augmented the impairment.
8. I do not accept the submission by the applicant that the manner in which s 15(1) of the 1987 Act deems an injury to have occurred at "the culmination" of events overcomes the clear principle in Ozcan that where a later impairment augments the earlier impairment they are to be assessed together as resulting from the first impairment.
9. I further do not accept the applicant's submission that the later onset of the right shoulder somehow changes the analysis. The claim for lump sum compensation was advanced by the applicant on the basis that the right shoulder should be aggregated with the other impairments and on its own the right shoulder does not reach the 11% whole person impairment threshold.

1. The applicant sustained injury to his left shoulder and lumbar spine as a result of the nature and conditions of his employment with respondent up to 3 November 2004 with a deemed date of 3 November 2004;
2. The applicant sustained a further injury to his left shoulder, right shoulder, lumbar spine and a consequential condition to his urinary and reproductive system due to the nature and conditions of his employment up to 22 July 2020 with a deemed date of injury of 22 July 2020.
3. The 3 November 2004 injury materially contributed to the further injury of 22 July 2020 such that impairment resulting from the latter injury is to be assessed as resulting from the 3 November 2004 injury.
4. The monetary compensation payable to the applicant pursuant to s 66 of the 1987 Act is to be calculated with reference to the 3 November 2004 injury.
5. Pursuant to s 329(1A) of the 1998 Act claim for permanent impairment compensation is remitted to the President for referral back to Medical Assessors Carter and Obele for reconsideration with respect to:

(a) correction of the date of injury such that it is injury on 3 November 2004 (incorporating injury on 22 July 2020 (deemed), and

(b) correction of any error with respect to the left and right upper extremity in the lead Medical Assessment Certificate of Dr Carter which inverts the findings of Medical Assessor Obele with respect to the left and right upper extremity.